130 Misc. 2d 946 | N.Y. Sup. Ct. | 1986
OPINION OF THE COURT
I have again reviewed the papers in defendant Dr. Bauer’s above-captioned motion for summary judgment, as well as my notes from the oral argument and the applicable law.
The defendant Dr. Bauer asserts that plaintiff’s action is time barred because his last contact with the plaintiff was her annual exam on June 14, 1979, more than two and one-half years before he was served with the summons and complaint on February 19, 1982. The plaintiff opposes summary judgment claiming that her action was commenced within one year of discovery that her intrauterine device (IUD) had never been removed, and it therefore falls within the "foreign object” exception of CPLR 214-a.
A brief review of the sequence of events reveals that in August 1973 the plaintiff had a Daikon Shield intrauterine
The plaintiff commenced her cause of action against Dr. Bauer on February 19, 1982 alleging medical malpractice for his failure to remove her IUD in 1977 and for failing to inform her of its presence in 1979. The defendant Dr. Bauer seeks dismissal of the cause of action as untimely.
The court is mindful of the learned decision of Justice Tenney in Dunaway v Ball (116 Misc 2d 409 [Jefferson County 1982]) wherein he found that the failure to detect and remove an IUD was an action for misdiagnosis and improper follow-up treatment rather than an action for medical malpractice involving a "foreign object”. Justice Tenney distinguished Dunaway from the Court of Appeals hallmark "foreign object” decision in Flanagan v Mount Eden Gen. Hosp. (24 NY2d 427) by holding that the IUD was already in the body at the time of the alleged malpractice, that the defendant was not involved in its implantation, and further that the "foreign object” (a surgical clamp) in Flanagan was placed in the plaintiff’s body without the intent that it remain there.
The facts presented herein go beyond the holding in Dunaway and are more closely analogous to those cited in Ooft v City of New York (80 AD2d 888 [2d Dept 1981]) wherein the defendant inserted a second IUD in the plaintiff without removing the first one. The court in Ooft held that the first IUD became a "foreign object” when the second IUD was